RESEARCH
LPL EDITIONS
RESEARCH ACADEMY
HAPPENING
RESEARCH
Constitutional Law and Political Science
TRust, Independence, Impartiality and Accountability of judges and arbitrators under the EU Charter (TRIIAL) GA nº 853832
Responsible Researchers:
Tiago Fidalgo de Freitas
Tiago Fidalgo de Freitas
Financing:
European CommissionJUST-JTRA-EJTR-AG-2018
European CommissionJUST-JTRA-EJTR-AG-2018
Project Status:
Closed
Closed
Summary
The TRIIAL Project proposal comes at the time of constitutional turmoil in many Member States. Whilst it is a common knowledge that liberal democracies require the tripartite division of powers, the role of judges and the challenges their work presents from the perspective of guaranteeing judicial impartiality, independence, and accountability, have been rarely explored and recently also threatened. We can observe the serious indications that we are witnessing the beginning of a longer struggle for fair trial standards enshrined in the Charter of Fundamental Rights (CFR). This Project aims at assisting in the response of the present constitutional crisis. The standards enshrined in the CFR, and, in particular, in Article 47 on the right to an effective remedy and to a fair trial are part of a wider EU-level legal framework that guarantees the independence, impartiality and accountability of judges, and arbitrators and other legal practitioners. In addition, increasing the ability of legal practitioners, including the judiciary, to promote rule of law in their everyday work while implementing the EU fundamental rights legal framework. In doing so the Project aims to support the development of networks of knowledgeable legal practitioners working on the rule of law and democracy. This section outlines the background of the problems, the needs, and the objectives addressed by the Project.
Objectives
The Project will engage, through an intense factfinding activity, with the identification of reliable criteria for establishing whether a national court and arbitrators can provide, in an individual case, an effective remedy and a fair trial within the meaning of Art. 47 CFR. Attention will be paid to the concepts of “independence”, “impartiality” and “accountability”, which will be treated as distinct, but strictly tied concepts, where each of the three has an influence on the others and the three of them are essential to the objective of deploying an effective judicial protection. The criteria and tools identified will then serve as the bases of transnational, cross-border training sessions and national training. The attainment of knowledge by legal professions on CFR standards on independence, impartiality and accountability will be ensured by the Project by, inter alia: - raising the awareness of national courts, arbitrators, lawyers, prosecutors and other civil servants of the role of EU law and the CFR as means to counteract challenges to (or violations of) the European rule of law; - equipping national courts, arbitrators, lawyers, and prosecutors and other civil servants with objective criteria aimed at assessing judicial independence, impartiality and accountability (their own and that of their peers in the same Member State or other Member State); - making national courts, arbitrators, and lawyers familiar with the techniques of judicial, and more broadly, legal interaction and judicial dialogue through which they can test the formal compliance of the Member States with the aforementioned criteria and, as a consequence, displaying the potential of the CFR as an effective tool to address the independence, impartiality and accountability of judges and arbitrators - promoting the freedom of expression of the judiciary in their professional capacity, including its relationship with the media and the use of technologies, which, ultimately should enhance the public trust in the effective and correct administration of justice. The team will ensure that this project will not duplicate any previously EC funded project on training for target legal practitioners in similar areas. Although the Project deals with a topic that has been addressed previously by other training institutions – judicial independence, this Project focuses on the added value of the EU Charter in safeguarding judicial independence. In addition, the Project has a holistic view, which relies on a broader view of rule of law, addressing not only judicial independence, but also impartiality and accountability.
Relevance
This project responds to the call for training judges, lawyers, prosecutors, arbitrators, lawyers, policy makers, public officials, representatives of ministries and legal practitioners on the scope of the EU Charter in the specific context of existing theoretical and practical guarantees of independence, impartiality and accountability of judges and arbitrators as elements of the right to a fair trial and access to justice enshrined in Art. 47 CFR. TRIIAL starts from the premise that these guarantees relating to the judicial profession and arbitrators constitute a common good of European citizens and legal professionals and a precondition of a separation of powers in line with the rule of law standards. This means that their protection requires high levels of awareness of substantive components of the standards at stake. In addition, procedural mechanisms both at national and international levels are necessary to foster these standards. Therefore, TRIIAL foresees the close collaboration and cross-professional trainings predominantly on transnational level to enhance the knowledge of all legal professionals on the matter. In line with the consolidated expertise of the Applicant and the Consortium Partners in the field of legal training, TRIIAL addresses the priority of supporting judicial trainings of justice professionals with the hope that the project will aid to building public trust in the profession of judges to sustain their position. The following specific objectives are at the heart of the project: 1) raising a deeper awareness of the fundamental character of judicial training for enhancing the judicial independence and accountability; 2) building trust, legitimacy, dialogue, accountability of the judiciary and arbitrators; 3) contributing to the development and dissemination of a European judicial culture among target groups beyond professional boundaries eventually inspired to also by best practices of communication/interaction/cooperation and to feedbacks arising from the civil society. The project will start with the focus on the CFR and its application as the quintessential source of the guarantees for the judicial profession, it will address the broader issue of trust in legal systems of single MSs (whose existence has been challenged already before the CJEU) and the mutual recognition in the areas of criminal law. The innovative aspect TRIIAL lies in a change of approach shifting from an abstract assumption of judicial independence, impartiality and accountability as a prerequisite of the rule of law towards a reconfiguration of the current patterns of the judicial education in which these three terms become all parts of an integrated process involving a multitude of actors in applying the EU fundamental rights legal framework, rather than distinguished objectives to be addressed. Additionally, the project includes the often overlooked role of arbitrators in securing the standards of fair trial and access to justice as enshrined in the CFR. It should be stressed that arbitrators have assumed an informal yet an incrementally more robust role in determining various issues of EU law as a result of the increasing support thereof by the European Commission (see, for example, the new EU regulatory framework for Alternative Dispute Resolution (ADR) under the ADR Directive 2013/11/EU). Another innovative aspect of the TRIIAL legal trainings is that it will contribute to building public confidence in the judiciary and arbitrators, which ultimately contributed to the safeguard of the judicial and quasi-judicial independence. In particular, the training activities will include: (a) cross-border training sessions for multipliers, such as: legal trainers and EU law coordinators from national courts and bars; and (b) training activities with participants from various legal professions, such as judges, prosecutors, lawyers, court experts, and arbitrators in order to create a European legal culture across professional boundaries.
